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Feb. 7, 2021, 3:05 p.m. EST

5 key questions for Trump’s Senate impeachment trial

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Associated Press

Arguments begin Tuesday in the impeachment trial of Donald Trump on allegations that he incited the violent mob that stormed the U.S. Capitol on Jan. 6.

Don’t miss: How Trump’s second impeachment trial will work – MarketWatch

A look at five key questions about what to expect when senators hear the case against the former president in the very chamber that was besieged by insurrectionists:

Will Trump be convicted? That’s unlikely. While many Republicans were harshly critical of Trump for telling supporters to “fight like hell” and go to the Capitol, their criticism has since softened.

The shift was evident during a Jan. 26 test vote. Only five Republican senators voted against a motion that was aimed at dismissing the trial.

It will take a two-thirds vote of the 100-member Senate to convict Trump of the impeachment charge, which is “incitement of insurrection.” If all 50 Democrats (inclusive of independents Angus King of Maine and Bernie Sanders of Vermont) voted to convict him, 17 Republicans would have to join them to reach that threshold.

Most Republicans have avoided defending Trump’s actions on the day of the riot. Instead, lawmakers have argued that the trial is unconstitutional because Trump is no longer in office. Democrats and many legal scholars disagree.

See: House Minority Leader Kevin McCarthy becomes poster boy for Republicans walking back their criticism of Trump over his central role in the Capitol riot

After the January test vote, many Republicans indicated Trump’s acquittal was a foregone conclusion. “Do the math,” said Maine Sen. Susan Collins, one of the five Republicans who voted to move forward with the trial. Sen. Lindsey Graham, the South Carolina Republican who began the Trump era as a pitched rival and ended it as one of Congress’s most loyal Trump backers, said he thought the vote was a “floor not a ceiling” of Republican support to acquit.

Still, some Republicans said they were waiting to hear the arguments at trial. Ohio Sen. Rob Portman, who announced late last month that he is not seeking re-election in 2022 , voted for the effort to dismiss but said that constitutionality “is a totally different issue” than whether Trump is guilty of incitement.

How do Trump’s lawyers mount a defense without angering the Senate? It’s a tough needle to thread. Trump’s team probably will try to remove the emotion from the case and focus on legal and practical arguments against conviction.

In their first filing for the trial, his lawyers made clear that they will challenge the constitutionality of the trial now that Trump has left the White House. That could give an out to Republican senators who are inclined to acquit the former president without condoning his behavior.

The defense could also argue the trial is pointless with Trump no longer president, because removal from office is the automatic punishment for an impeachment conviction. Democrats note that, after a conviction, the Senate also could bar Trump from holding public office in the future.

To the extent that defense lawyers are forced to grapple head-on with the violence and chaos of Jan. 6, they probably will concede the horror of that day but blame it on the rioters who stormed the Capitol. Some Republicans have sought to create doubt about who the rioters were, at times going as far as to cite Black Lives Matter and antifascists as having impersonated Trump supporters while violently breaching the Capitol complex.

Sen. Ron Johnson of Wisconsin on Sunday sought to assign blame to House Speaker Nancy Pelosi , while Graham has threatened that calling witnesses in the Senate could somehow backfire on the Democratic House managers.

Trump’s lawyers assert that Trump never incited insurrection.

How to House impeachment managers get through to skeptical Republican senators? It won’t be easy. For the prosecutors, the bottom line is that the riot wouldn’t have happened without Trump, so he must be held to account.

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